[EL] When is a finger not a pen? Article discussing on-line digital signatures.

Fri Mar 1 11:23:12 PST 2013

A forthcoming Temple Law Review article of mine on privacy and petitioning discusses the issue of electronic signatures in the petition context if the comparison is helpful. A California court rejected e-signatures in Ni v. Slocum, 127 Cal. Rptr. 3d 620, 622–23 (Cal. Ct. App. 2011), finding that the petition statute at issue required the signer to "personally affix" his/her signature. Nebraska<http://update.legislature.ne.gov/?p=3659>, Utah<http://www.sltrib.com/sltrib%20/home/51395915-76/ballot-ban-bill-daw.html.csp>, and Montana<https://doj.mt.gov/wp-content/uploads/2011/06/2011mcculloch.pdf> legislators have also considered e-signing petitions, so far without traction. The Tennessee Attorney General recently authored an advisory opinion on the subject (here<http://www.tn.gov/attorneygeneral/op/2012/op12-80.pdf>) which rejects the Uniform Electronic Transactions Act argument. Still, it's hard to believe e-signing in the petition context will be held back for long, particularly when paid petition circulators arguably distort the process….

Thanks,

Rebecca

________________________________
Rebecca Green
Co-Director, Election Law Program
William & Mary Law School

From: Jack Cushman <jcushman at gmail.com<mailto:jcushman at gmail.com>>
Date: Friday, March 1, 2013 1:35 PM
To: "bzall at aol.com<mailto:bzall at aol.com>" <bzall at aol.com<mailto:bzall at aol.com>>
Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] When is a finger not a pen? Article discussing on-line digital signatures.

</>Interesting! Here's the part of the article that describes the procedure we're talking about:

The firm, Allpoint Voter Services, “uses remote-control pens to transmit ‘signatures’ over the Internet.” After a voter enters information in an online form, he “signs” it with a stylus or finger on his screen. Allpoint transmits the “signature” to an autopen in California or Nevada, which transcribes the signature on to a paper voter registration form. Allpoint then mails the document to local election boards.

A complete description is available here<http://www.nccivitas.org/wp-content/uploads/2013/02/05.pdf>, including the fact that the online form they refer to is the standard National Voter Registration Act form including state-specific instructions.

I'm more interested in whether that process works in general than whether particular people are doing something shady (or outright breaking the law) in North Carolina. But to begin with, this Civitas article is slanted to the point of just being wrong. The core story they've put together is that a contractor retained by the Obama campaign to run a voter registration website contacted North Carolina's State Board of Elections to ask whether the above procedure was lawful. The SBE's General Counsel prepared a legal memo<http://www.nccivitas.org/wp-content/uploads/2013/02/05.pdf> concluding that it was lawful under the NC Electronic Transactions Act and stating that "Special Deputy Attorney General Susan Nichols has reviewed and concurs in this opinion." Nichols later asked the General Counsel<http://www.nccivitas.org/wp-content/uploads/2013/02/03.pdf> not to use that language in the future because the AG's office no longer allowed attorneys to state they concurred in opinions they didn't write. She also said "I know we talked about the issue of the remote signing and I agreed with your analysis, although I don't specifically recall reviewing the final opinion." So as far as we know the process is lawful in North Carolina according to the lawyers who reviewed it in both the SBE and AG's office, and it resulted in some mail-in registrations being sent and accepted.

There are a couple of anecdotes in there as well about individual incidents that are possible in any sort of registration drive, and that might be worth investigating if you enforce election law in North Carolina -- a signature that didn't match, a person who was asked for unknown reasons to print and mail her form, payments that might have been related to the number of registrations obtained. But the core legal story is the above paragraph plus a more than generous dose of innuendo.

So anyway, in terms of the general issues here --

-- Do people buy the argument that this remote-sign process is legal in states that have adopted the Uniform Electronic Transactions Act? Has that been tested?

-- Should this be legal? Is there a good reason to differentiate between a form filled out by computer and signed with a touchscreen-controlled robot, as opposed to a form filled out and signed with a pen? I assume we already make that accommodation for disabled people, and digital or scanned signatures are routine for relatively high-stakes business transactions  -- is there a reason to be wary of it here?

Curious to hear what y'all think.

--Jack

On Fri, Mar 1, 2013 at 11:09 AM, <bzall at aol.com<mailto:bzall at aol.com>> wrote:
Hasn't appeared in the blog, so I'll ask about this article, http://www.philanthropydaily.com/nonprofits-behaving-badly/, about this report: http://www.nccivitas.org/2013/elections-bureaucrats-ran-amok/

Excerpt:

In a blatantly partisan move, the staff of the North Carolina State Board of Elections (SBE) successfully subverted state law to facilitate online voter registration in North Carolina by the 2012 Barack Obama campaign. In doing so they coordinated with partisans behind closed doors, lied about the NC Attorney General’s Office concurring with the SBE staff on the issue, and dodged oversight by their own board and the legislature. The end result was to add thousands of people to the North Carolina voter rolls illegally.
The SBE staff’s audacity is so breath-taking that it’s hard to believe, so let us emphasize:  The Civitas Institute has documented how SBE bureaucrats conspired with a private company, working for the Obama campaign[i]<http://www.nccivitas.org/2013/elections-bureaucrats-ran-amok/#_edn1>, to facilitate a form of online voter registration for the 2012 General Election – in violation of state law. It’s a classic example of how bureaucrats ignore the democratic process and hijack an agency for partisan purposes.

Leaving aside the criticism of Jane Mayer (which some people argue is richly-deserved), I'm curious if there's another take on this actual voter registration procedure, or if it's as portrayed, particularly on the question of on-line signatures translated into a mailed document.

And the finger-based system does lend another meaning to the discussion over "digital democracy."

Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
10411 Motor City Drive, Suite 500
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bzall at aol.com<mailto:bzall at aol.com>
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